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TMI Blog2012 (4) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... al of appeal as also confirmation of concealment penalty of Rs. 3,82,066/-imposed on account of an addition of Rs. 11,57,777/- for disallowance of expenses. 2. Facts in brief as emerged from the corresponding penalty order levied under section 271(1)(c) dated 30/08/2010 were that the following two expenses were disallowed:- (i) Loans written off (ii) Deferred tax written off ...... Rs.8,42,000/- ...... Rs.3,15,777/- 2.1. While imposing penalty, the AO has commented that the loans written off were found to be given as loans and advances to directors and shareholders. The assessee was unable to establish the business purpose of deduction hence disallowed. According to AO, the assessee has also not explained the genuine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act. The return for the assessment year 2006-07 was filed on 30/10/2006 declaring a loss of Rs. 11,70, 229/-. The name of the company was struck off on 27/5/2010. The assessment of the company was finalized on 18/3/2010 under section 143(3) read with section 147 of IT Act and total loss of Rs. 12,452/- was assessed. Thereafter, penalty was imposed under section 271(1)(c) vide an order dated 30/8/2010. If the company was not in existence, then how the assessment was made in the name of the company and also penalty was imposed. Learned AR has therefore pleaded that if the penalty has been imposed on a company, then he has legal right of appeal. 5. From the side of the Revenue learned DR Mr. Vinod Tanwani appeared. At the outset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t when the appeal was filed by the Director of the company on behalf of the company, then it was held by ld. CIT (A) that since the company was not in existence therefore the Director had no locus standi to file the appeal. We have examined the appeal memo, that is Form No. 35, filed by the Director dated 15/9/2010. One Shri Mohinder Paul B Gupta has signed the said form in the capacity of an ex-director. The first and the foremost question is that who is authorized to sign Form No.35, i.e. the Appeal Memo being submitted before learned CIT(A). 6.1. Section 249 (1) prescribes that every appeal shall be in the prescribed form and shall be verified in the prescribed manner. As per Rule 45(2) of Income Tax Rules, the form of appeal as prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied for the striking off the name by the Registrar of Companies. The present controversy falls under this category. Winding up is a process by which the assets of the company are realized and the liabilities are paid. Section 179 of the Companies Act says that if the name of the company is struck off by the Registrar of Companies, it's indisposed property is not appropriated to its liabilities. The Act says that nobody would claim that property and that the doctrine of bona vacantia will be attracted in that contingency. Meaning thereby the Companies Act has made a separate and special provision for the companies whose names are struck off the Registrar within the scope of section 179 of the Companies Act. 6.3. We have laid hands on a gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are responsible for every lawful liability then in our considered opinion they are also entitled to verify the Form No. 35 by signing in the capacity of director. We hereby hold that in the case of a Company whose name has been struck-off the register by the Registrar of Companies can file an appeal U/s 246 of the I.T. Act and in that situation the Director of the erstwhile is authorized to sign the requisite Forms. We are of the conscientious view that in the present scenario and considering the legal position the director has lawfully signed the requisite form and the learned Commissioner has wrongly dismissed the appeal in limine. We therefore direct the learned CIT(A) to admit the appeal and thereupon decide on merits. In the result, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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